A Study On Blackstone's Legal Thought | Posted on:2011-12-21 | Degree:Doctor | Type:Dissertation | Country:China | Candidate:J G Li | Full Text:PDF | GTID:1116360332956921 | Subject:Legal theory | Abstract/Summary: | PDF Full Text Request | Chapter 1 is the introduction of the dissertation, which includes the selection and significance of the subject, the previous studies and the approach of the discussion and the structure of this dissertation. My concerns agree with Blackstone's legal thoughts and his influences. On the one hand, my concerns are that the stability and changeability of laws and the social order which is formed through their application. On the other hand, The Enlightenment had just generated a new epoch, which drew the major European nations into reforms, which tried to decrease the relation with its past. But in the context, Blackstone is a firm promoter and thinks common law tradition is the protection of English liberty, so he is conservative. Although his conservatism is not consistent with the mainstream of time spirit, Blackstone's legal thought has deep impact on the Anglo-American legal tradition. So that, the way by which Blackstone were able to come to a balance between the stability and changeability of law is an obviously appropriate subject-matter of academic research.Chapter 2 mainly concerns with the historical background and Blackstone's theoretic goal. It attempts to set Blackstone in his time and place, and point out those contemporary factors with regard to England and the influences of the Commentaries: the elevation of human reason owing to the revolution of science and Enlightenment, the confirmation and identity of the common law under influences of the rise of nation-states, the transformation of laws and jurisprudence in accordance with English capitalism, and the consequences of the establishment of parliamentary sovereignty after the 1640-1689 revolutions. It should be noted that such an examination is just an outline of important factors, however it has shown there are contemporary changes that Blackstone cannot escape and of which we may find some hints in his Commentaries. Under the background, it continues to review Blackstone's theoretic goal, that is, to construct the balance between the stability and changeability of law in order to maintain liberty in England. Although living in a changing age, he opposed to a thorough reform of English laws especially the common law, because of his care for the reason of history and the liberty in England. In his opinion, the temporary legislation is not superior to the common law built up by accumulated wisdoms; the common law keeps England in a peaceful development, and in a great extent secures liberty in England. To get the common law's conservatism in harmony with needs of the time, Blackstone put forward the gradual mode of legal development that was both future-oriented and based on reference of the long-lasting Anglo-Saxon laws by way of partly adjustments.Chapter 3 introduces Blackstone's general explanation of law and analyses its intrinsic tensions. Blackstone thinks that law includes natural law, revealed law, international law and domestic law, among which only the domestic law can be changed that includes written law, common law and equity. Written law and common law are more significant than equity, and the latter is restricted in prevention of judges' abuses of their discretion. Blackstone recognized the end or object of English laws as the maintenance of liberty in England. In order to prove the perfection of English laws superior to other nations' laws, he sought a systematic integration of English law with natural law as the logical premise and the source of validity. But it arose a formidable difficulty, the impossibility of deduction of the "is" of domestic law from the "ought" of natural law. Subsequently, this chapter will analyse Austin's criticisms of Blackstone's ideas of natural law in order to indicate that Blackstone's legal ideas was the tie of natural law with legal positivism and Austin's criticisms simply made clear the turn of legal science. Not only there is the tension between the natural law and domestic law, but also there is the tension between the common law and parliamentary legislation both of which get legitimacy from "God". For in value the common law excels the written law, but in validity conflicts, the written law comes first. In fact, such a tension is closely connected with Blackstone's goal. On the one hand, the authority of Parliament is to be preserved for freedom from social chaos. On the other hand, the value of the common law is to be insisted for the continuation of social order and protection of liberty in England. The way out is the exercise in practice of legal fiction and judge's role: that the judge can work only as "an oracle", unable to legislate in a clear-sighted way; when coming across the conflicts between the written law and the common law, the judge only can achieve the individual-case justice through legal fictions that maintain the authority of the written law in maximum.Chapter 4 analyses Bentham's criticisms of Blackstone in order to demonstrate two paths of legal development. With respect to Bentham, the core text is A Fragment on Government which poses three relevant questions: the formation of government, the right to resist government, and the perfect form of English polity. There is a tight correlation between these three questions and the stability and changeability of law. This chapter tries to show that legal development can follow two different paths, the gradual path of Blackstone and the reformational path of Bentham, and indicate that the difference of two paths.Chapter 5 reformulates Blackstone's theoretical significance and reflects his internal theoretical contradictions. Firstly, Blackstone's failure in scientizing of the common law demonstrates the two dimensions of the common law, that is, as a science and as a purposive practice, and here we find out that Blackstone's common law is historical but not logical. In spite of that failure, his common law may as well satisfy certain practical ends. In addition, such failure implies the incompatibility of different legal cultures, that the systematic structure of the Roman law cannot be used to integrate the common law rules, and therefore the failure of Enlightenment, the failure of deduction of the comprehensive knowledge system from one or some axioms, of which Blackstone's failure is just a paradigm. Secondly, it is most important to discuss a crucial issue through inquiries into Blackstone: what is the ground by which laws keep stable and undergo transformations? His endeavor to maintain effective balance between stability and changeability to establish liberty in his nation, might provide valuable intellectual consult for our current legal development.Chapter 6, the conclusion assesses Blackstone's legal thought simply on the foregoing analysis. In the end of the dissertation, it puts forward that the tradition of common law is significant to the balance of the stabilization and change of law and the protection of liberty. And, it advances a question for further consideration, that is, how can we promote the development of law without the tradition of common law?... | Keywords/Search Tags: | Blackstone, Legal Order, Stability, Changeability, Liberty | PDF Full Text Request | Related items |
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